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Cite as: 549 U. S.

____ (2007) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES


LAKHDAR BOUMEDIENE ET AL.
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.

KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI

KHALID ABDULLAH FAHAD AL ODAH, ET AL.

06–1196 v.
UNITED STATES ET AL.
ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

Nos. 06–1195 and 06–1196. Decided April 2, 2007

JUSTICE BREYER, with whom JUSTICE SOUTER joins, and


with whom JUSTICE GINSBURG joins as to Part I, dissent
ing from the denial of certiorari.
I would grant the petitions for certiorari and expedite
argument in these cases.
I
Petitioners, foreign citizens imprisoned at Guantanamo
Bay, Cuba, raise an important question: whether the
Military Commissions Act of 2006, Pub. L. 109–366, 120
Stat. 2600, deprives courts of jurisdiction to consider their
habeas claims, and, if so, whether that deprivation is
constitutional. I believe these questions deserve this
Court’s immediate attention.
First, the “province” of the Great Writ, “shaped to guar
antee the most fundamental of all rights, is to provide an
effective and speedy instrument by which judicial inquiry
may be had into the legality of the detention of a person.”
Carafas v. LaVallee, 391 U. S. 234, 238 (1968) (emphasis
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BREYER, J., dissenting

added and footnote omitted). Yet, petitioners have been


held for more than five years. They have not obtained
judicial review of their habeas claims. If petitioners are
right about the law, immediate review may avoid an addi
tional year or more of imprisonment. If they are wrong,
our review is nevertheless appropriate to help establish
the boundaries of the constitutional provision for the writ
of habeas corpus. Cf. Carafas, supra. Finally, whether
petitioners are right or wrong, our prompt review will
diminish the legal “uncertainty” that now “surrounds” the
application to Guantanamo detainees of this “fundamental
constitutional principle.” Brief for Senator Arlen Specter
as Amicus Curiae 19; see generally ibid. (favoring expe
dited consideration of these cases). Doing so will bring
increased clarity that in turn will speed review in other
cases.
Second, petitioners plausibly argue that the lower
court’s reasoning is contrary to this Court’s precedent.
This Court previously held that federal jurisdiction lay to
consider petitioners’ habeas claims. Rasul v. Bush, 542
U. S. 466, 485 (2004) (providing several of these petition
ers with the right to habeas review under law as it then
stood). Our analysis proceeded under the then-operative
statute, but petitioners urge that our reasoning applies to
the scope of the constitutional habeas right as well. In
holding that the writ extended to the petitioners in Rasul,
we said that Guantanamo was under the complete control
and jurisdiction of the United States. Id., at 480–481; id.,
at 487 (KENNEDY, J., concurring in judgment) (“Guan
tanamo Bay is in every practical respect a United States
territory”). We then observed that the writ at common law
would have extended to petitioners:
“Application of the habeas statute to persons detained
at the base is consistent with the historical reach of
the writ of habeas corpus. At common law, courts ex
Cite as: 549 U. S. ____ (2007) 3

BREYER, J., dissenting

ercised habeas jurisdiction over the claims of aliens


detained within sovereign territory of the realm, as
well as the claims of persons detained in the so-called
exempt jurisdictions, where ordinary writs did not
run, and all other dominions under the sovereign’s
control . . . . [E]ven if a territory was no part of the
realm, there was no doubt as to the court’s power to
issue writs of habeas corpus if the territory was under
the subjection of the Crown.” Id., at 481–482 (internal
quotation marks and footnotes omitted).
Our reasoning may be applicable here. The lower court’s
holding, petitioners urge, disregards these statements and
reasoning.
Further, petitioners in Boumediene are natives of Alge
ria, and citizens of Bosnia, seized in Bosnia. Pet. for Cert.
in No. 06–1195, p. 4. Other detainees, including several
petitioners in Al Odah, also are citizens of friendly na
tions, including Australia, Canada, Kuwait, Turkey, and
the United Kingdom; and many were seized outside of any
theater of hostility, in places like Pakistan, Thailand, and
Zambia. Pet. for Cert. in No. 06–1196, pp. 2–3, and n. 2;
476 F. 3d 981, 1007 (CADC 2007) (Rogers, J., dissenting).
It is possible that these circumstances will make a differ
ence in respect to our resolution of the constitutional
questions presented. Cf. Hamdi v. Rumsfeld, 542 U. S.
507, 509, 514, 521 (2004) (plurality opinion of O’Connor,
J., joined by Rehnquist, C. J., and KENNEDY and BREYER,
JJ.) (holding military had authority to detain United
States citizen “enemy combatant,” captured in a “zone of
active combat in a foreign theater of conflict,” specifically
Afghanistan, and stressing, in a “narrow” holding, that
“[a]ctive combat operations against Taliban fighters . . .
[were] ongoing in Afghanistan” (emphasis added)).
The Government, of course, contests petitioners’ argu
ments on the merits. But I do not here say petitioners are
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BREYER, J., dissenting

correct; I say only that the questions presented are signifi


cant ones warranting our review.
If petitioners have the right of access to habeas corpus
in the federal courts, this Court would then have to con
sider whether Congress’ provision in the Detainee Treat
ment Act of 2005 (DTA), Tit. X, 119 Stat. 2739, providing
for review in the Court of Appeals for the D. C. Circuit of
those proceedings, is a constitutionally adequate substi
tute for habeas corpus. See Swain v. Pressley, 430 U. S.
372, 381 (1977). The Government argues that we should
therefore wait for a case where, unlike petitioners here,
the detainee seeking certiorari has actually sought and
received review under these alternative means. E.g., Brief
in Opposition 16–17. Petitioners respond, however, that
further proceedings in the Court of Appeals under the
DTA could not possibly remedy a constitutional violation.
The lower court expressly indicated that no constitutional
rights (not merely the right to habeas) extend to the Guan
tanamo detainees. 476 F. 3d, at 991–992 (rejecting peti
tioners’ arguments under this Court’s precedent that
fundamental rights afforded by the Constitution extend to
Guantanamo, and noting that “[p]recedent in this circuit
also forecloses the detainees’ claims to constitutional
rights”). Therefore, it is irrelevant, to petitioners, that the
DTA provides for review in the D. C. Circuit of any consti
tutional infirmities in the proceedings under that Act,
§1005(e)(2)(C)(ii), 119 Stat. 2742; the lower court has
already rendered that provision a nullity.
Nor will further percolation of the question presented
offer elucidation as to either the threshold question
whether petitioners have a right to habeas, or the question
whether the DTA provides a constitutionally adequate
substitute. It is unreasonable to suggest that the D. C.
Circuit in future proceedings under the DTA will provide
review that affords petitioners the rights that the Circuit
has already concluded they do not have. Ordinarily, ha
Cite as: 549 U. S. ____ (2007) 5

BREYER, J., dissenting

beas petitioners need not exhaust a remedy that is inade


quate to vindicate the asserted right. See Wilwording v.
Swenson, 404 U. S. 249, 250 (1971) (per curiam).
The Government, in Hamdan v. Rumsfeld, 548 U. S. ___
(2006), similarly argued for delay. Id., at ___ (slip op., at
52) (“The Government objects to our consideration of any
procedural challenge at this stage on the grounds that . . .
[petitioner] will be able to raise any such challenge follow
ing a ‘final decision’ under the DTA”). That case, too,
presented questions of the scope of the Guantanamo de
tainees’ right to federal-court review of DTA-authorized
procedures. We there rejected the Government’s argu
ment for delay as unsound. Id., at ___–___ (slip op., at 52–
53) (“[C]ontrary to the Government’s assertion, there is a
‘basis to presume’ that the procedures . . . violate the
law . . . . Under these circumstances, review . . . in ad
vance of a ‘final decision’ . . . is appropriate”).
Here, as in Hamdan, petitioners argue that the tribu
nals to which they have already been subjected were
infirm (by, inter alia, denying Petitioners counsel and
access to evidence, Pet. for Cert. in No. 06–1195, p. 7).
Hamdan, supra, at ___–___ (slip op., 35–36). Here, as in
Hamdan, petitioners assert that these procedural infirmi
ties cannot be corrected by review under the DTA which
provides for no augmentation of the record on appeal and,
as noted above, will provide no remedy for any constitu
tional violation. See DTA §1005(e)(2)(C), 119 Stat. 2742;
476 F. 3d, at 1005 (Rogers, J., dissenting). Here, as in
Hamdan, supra, at ___ (slip op., at 25), petitioners have a
compelling interest in assuring in advance that the proce
dures to which they are subject are lawful. And here,
unlike Hamdan, the military tribunals in Guantanamo
have completed their work; all that remains are the ap
peals. For all these reasons, I would grant the petitions.
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BREYER, J., dissenting

II

Moreover, I would expedite our consideration. In the


past, this Court has expedited other cases where impor
tant issues and a need for speedy consideration were at
stake. In Ex parte Quirin, 317 U. S. 1 (1942), the Court
decided that it should grant expedited consideration,
“[i]n view of the public importance of the questions
raised by [the] petitions and of the duty which rests
on the courts, in time of war as well as in time of
peace, to preserve unimpaired the constitutional safe
guards of civil liberty, and because in our opinion the
public interest required that we consider and decide
those questions without any avoidable delay.” Id., at
19.
See also Felker v. Turpin, 518 U. S. 651 (1996); New York
Times Co. v. United States, 403 U. S. 713 (1971) (per cu
riam); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
579 (1952).
For these reasons, I would grant the petitions for certio
rari and the motions to expedite the cases in accordance
with the schedule deemed acceptable (in the alternative)
by the Government.